Worldview Commentary No. 243 on Chicago Public Radio, 91.5 FM WBEZ

Published: April 12, 2006

“The American Society of International Law: A Rare Rebuke”

No one could accuse the American Society of International Law of being an activist organization. Founded a century ago, its first President was Secretary of State Elihu Root. Its Centennial meeting in Washington this month was addressed by Root’s successor, Condoleeza Rice, and by Supreme Court Justice Anthony Kennedy.

The Society’s Executive Council (on which I sit) includes current and former State Department lawyers, as well as others not prone to public criticism of the United States. Reflecting its political and philosophical diversity, the 4,000 member Society rarely takes positions on issues of international law. Panels at its meetings are deliberately framed to present contrasting views. Its scholarly journal eschews editorials.

However, there have been a handful of exceptions in the 60 years since World War II. The most recent occurred on March 30, when the Society adopted a seven-point resolution at its Centennial meeting. (The resolution, I should disclose, was principally drafted by my Notre Dame colleague, Professor Mary Ellen O’Connell).

On the surface, the resolution is a neutral statement of principles of international law. It does not mention the United States by name. That is as it should be. The principles bind all countries, and the US is far from the only violator.

Still, the resolution would never have been presented, let alone adopted, unless it were widely understood by members of the Society as an implicit rebuke of the White House tendency (despite State Department qualms) to ride roughshod over some of the most basic principles of international law.

The principles cover use of force, war crimes, torture and other mistreatment of prisoners, arbitrary detention, command responsibility, and adherence to international law. The following are my shorthand summaries of the principles, together with my personal interpretations of the implicit messages intended by many – though not all — members of the Society:

Principle 1: Resort to armed force is governed by the Charter of the United Nations and other international law.

Implicit message: The US invasion of Iraq, without United Nations Security Council approval and absent an imminent threat to our security, violated the UN Charter and international law.

Principle 2: Armed conflict and occupation are governed by the Geneva Conventions.

Implicit message: Where the “war” against terror involves armed conflict or military occupation as in Afghanistan and Iraq, Administration claims that the Geneva Conventions do not apply are bogus.

Principle 3: Torture and cruel, inhuman or degrading treatment of prisoners are prohibited by international law, without exception.

Implicit message: The US violates international law by using techniques like “water boarding” (simulated drowning) and dogs menacing naked prisoners.

Principle 4: Prolonged, secret, incommunicado detention of prisoners is prohibited by international law.

Implicit message: CIA “ghost prisons” holding “ghost prisoners,” who are kept in secret locations unknown even to the Red Cross, and with no access to lawyers, family or the outside world, violate international law.

Principle 5: International law standards for treatment of prisoners apply to all branches of governments, to their agents and to combatants.

Implicit message: Neither the CIA nor private contractors are exempt from rules against torture and mistreatment. Nor, for that matter, are Al Qaeda and other terrorist groups who kidnap and behead people in Iraq and Afghanistan.

Principle 6: In some circumstances, both military and civilian commanders are personally responsible for acts of their subordinates.

Implicit message: There ought to be a serious investigation of whether Secretary of Defense Donald Rumsfeld and other senior officials have “command responsibility” for torture and mistreatment of prisoners at Abu Ghraib, Guantanamo and elsewhere.

Principle 7: All states should maintain security and liberty in a manner consistent with their international law obligations.

Implicit message: In its zeal to safeguard American security and liberty, the Administration tramples on fundamental rules of international law.

Other members of the Society may read the implicit messages differently than I do. Still others may insist, with a straight face, that these principles are no more than bland statements of law, aimed at no one in particular. Such is the diversity of views within the Society.

Even so, the bottom line is clear. If not for widespread concern that Administration disregard of international law is nothing short of alarming, no consensus would ever have moved the Society to issue one of its rare pronouncements on international law. If the Administration cannot persuade even this scholarly debating society to stand mute, our government can hardly convince the rest of the world to take seriously its pretensions to respect the rule of law.

Doug Cassel’s commentaries are broadcast Wednesdays during the noon hour of the Worldview program on Chicago Public Radio, 91.5 FM. Views expressed are personal views of the author and not necessarily those of Notre Dame Law School, the Center for Civil and Human Rights or Chicago Public Radio.